1
2
3
4
Allen Lichtenstein
NV Bar No.3992
General Counsel
ACLU of Nevada
3315 Russell Road, No. 222
Las Vegas, NV 89120
(702) 433-2666 phone
(702) 433-9591 fax
5
6
7
8
9
10
11
Robert A. Nersesian
NV Bar No. 2762
Nersesian & Sankiewicz
528 S. 8th St.
Las Vegas, NV 89101
(702) 385-5454 phone
(702) 385-7667 fax
Attorneys for the ACLUN, AAP, Inc,
ABFFE, FTRF, PEN American Center
12
13
14
15
16
17
18
19
20
21
22
UNITED STATES
)
)
Plaintiff,
)
)
v.
)
)
IRWIN SCHIFF; CYNTHIA NEUN;
)
LAWRENCE COHEN, aka Larry Cohen,
)
individually and all doing business as
)
FREEDOM BOOKS, ww.livetaxfree.com,
)
www.paynoincometax.com, wwwischiff.com,
)
)
Defendants.
)
__________________________________________)
CV-S-03-0281-LDG-RJJ
25
POST HEARING BRIEF BY AMICUS CURIE THE ACLU OF NEVADA,
JOINED BY THE ASSOCIATION OF AMERICAN PUBLISHERS, INC., THE
AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, THE
FREEDOM TO READ FOUNDATION OF THE AMERICAN LIBRARY ASSOCIATION,
AND THE PEN AMERICAN CENTER
26
Come now Amicus curie the ACLU of Nevada (ACLUN), joined by the Association of
27
American Publishers, Inc. (AAP), the American Booksellers Foundation for Free Expression
23
24
28
(ABFFE), the Freedom to Read Foundation (FTRF) of the American Library Association and the
1
2
PEN American Center, by and through the undersigned attorneys and files this post hearing brief.
The Association of American Publishers, Inc.. (“AAP”) is the national trade association of
3
the U.S. book publishing industry. AAP’s members include most of the major commercial book
4
5
publishers in the United States, as well as smaller and non-profit publishers, university presses, and
6
scholarly societies. AAP members publish hardcover and paperback books in every field,
7
educational materials for the elementary, secondary, postsecondary, and professional markets,
8
computer software, and electronic products and services. The Association represents an industry
9
10
whose very existence depends upon the free exercise of rights guaranteed by the First Amendment.
11
The American Booksellers Foundation for Free Expression (ABFFE) was organized in 1990.
12
The purpose of ABFFE is to inform and educate booksellers, other members of the book industry,
13
and the public about the dangers of censorship and to promote and protect the free expression of
14
ideas, particularly freedom in the choice of reading materials.
15
16
The Freedom to Read Foundation ("F TRF") is a nonprofit membership organization
17
established in 1969 by the American Library Association to promote and defend First Amendment
18
rights, to foster libraries as institutions fulfilling the promise of the First Amendment for every
19
citizen, to support the rights of libraries to include in their collections and make available to the public
20
any work they may legally acquire, and to set legal precedent for the freedom to read on behalf of
21
22
all citizens.
23
The PEN American Center, the professional association of over 2,600 literary writers (poets,
24
playwrights, essayists, editors, and novelists), is the largest in a global network of 131 Centers around
25
the world comprising International PEN. PEN's mission is to promote literature and protect free
26
expression whenever writers or their work are threatened. In particular, PEN defends writers from
27
28
censorship, harassment, and imprisonment. In the United States, PEN American Center defends the
ii
1
2
First Amendment whenever it comes under attack. To advocate for free speech in the United States,
PEN mobilizes the literary community to apply its leverage through sign-on letter campaigns, direct
3
appeals to policy makers, participation in lawsuits and amicus curiae briefs, briefing of elected
4
5
officials, awards for First Amendment defenders, and public events.
6
Dated this 1st day of May 2003.
7
Respectfully submitted by:
8
__________________
Allen Lichtenstein
General Counsel,
ACLU of Nevada
NV Bar No.3992
3315 Russell Road, No. 222
Las Vegas, NV 89120
(702) 433-2666 phone
(702) 433-9591 fax
9
10
11
12
13
14
Robert A. Nersesian
NV Bar No. 2762
Nersesian & Sankiewicz
528 S. 8th St.
Las Vegas, NV 89101
(702) 385-5454 phone
(702) 385-7667 fax
15
16
17
18
19
Attorneys for the ACLUN, AAP, Inc,
ABFFE, FTRF, PEN American Center
20
21
22
23
24
25
26
27
28
iii
1
2
TABLE OF CONTENTS
Points and Authorities
1
3
I.
Introduction
II.
Legal Standards
1
6
A.
Standards for a preliminary injunction
1
7
B.
Standards for a prior restraint on speech
2
4
5
8
9
10
11
III.
The government is unlikely to succeed on the merits in attempting to ban
The Federal Mafia.
A.
The Federal Mafia is not commercial speech.
5
B.
The Federal Mafia does not urge and is not likely to lead to imminent
lawless action.
9
C.
The Federal Mafia cannot be banned for prospectively aiding and
abetting crime.
10
D.
The proposed injunction would ban pure speech not conduct.
16
12
13
14
15
16
1.
The distribution of a book is not an “expressive act” under 16
United States v. O’Brien, but pure speech.
2.
The government is seeking a total ban on the book not
a time, place or manner restriction.
17
3.
The government’s entire argument focuses on the alleged
primary effect of the book – that people will believe it.
Therefore secondary effects analysis is inappropriate.
18
17
18
19
20
21
22
4
E.
20
23
Under the strict constitutional scrutiny that applies, the government
is unlikely to succeed on the merits.
24
1.
The government has not articulated a compelling interest in
banning The Federal Mafia.
20
2.
The proposed injunction is not only unnecessary, it is also
ineffective.
21
3.
An injunction against The Federal Mafia fails the least restrictive
22
25
26
27
28
iv
1
2
means test.
IV
The balance of hardships tips decidedly in Defendants’ favor.
23
V.
Conclusion
24
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
v
1
TABLE OF AUTHORITIES
2
cases
3
Alexander v. U.S., 509 U.S. 544 (1993)
2,12,22
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
10,11,13
4
5
6
BE & K Construction v. NLRB, 536 U.S. 516 (2002)
12
7
Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983)
6
8
Boos v. Barry, 485 U.S. 312 (1988)
17,18
Brandenb urg v. Ohio, 395 U.S. 444 (1969)
3,9,10,13
Cantwell v. Connecticut, 310 U.S. 296 (1940)
3
9
10
11
12
Carey v. Brown, 447 U.S. 455 (1980)
13
2,5,9
14
Central Hudson Gas and Electric Corp. v. Public Service Com’m. 447 U.S.
557 (1980)
15
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
13
16
Cincinnati v. Discovery Network, 507 U.S. 410 (1998)
6
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002)
18,19
Clark v. Co mmunity for Creative Non-Violence, 468 U.S. 288 (1984)
17
Consolidated Edison Co. of New York v. Public Service Commission of
New York, 447 U.S. 530 (1980)
13,19
Craig v. Harney, 331 U.S.367 (1947)
23
17
20
18
19
20
21
22
23
Ebel v. City of Corona, 698 F.2d 390 (9th Cir. 1983)
24
Elrod v. Burns, 427 U.S. 347 (1976)
25
Empire News v. Solomon , 818 F.Supp.307 (D. Nev. 1993)
23
Federal Commun ications Commission v. Pacifica Foundation, 438 U.S. 726
(1978)
23
26
27
28
vi
23
1
2
Fort Wayne Books v. Indiana, 489 U.S. 46 (1989)
22
Freedman v. Maryland, 380 U.S. 51 (1965)
22
3
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)
3,16
4
5
Gaudiya Vaishnava Society v. City of San Francisco, 952 F.2d 1059
(9th Cir. 1990)
7
Heffron v. International Society for Krishna Consciousness, 452 U.S. 640
(1981)
6,17
Hess v. Indiana, 414 U.S. 105 (1973)
9,13
Kingsley Int'l Pictures Corp . v. Regents of Univ. of N. Y., 360 U.S. 684
(1959)
11
Lovell v. Griffin, 303 U.S. 444 (1938)
16
Maryland State Board of Motion Picture Censors v. Times Film Corp., 129
A.2d 833 (Md. 1957)
22
McIntyre v. Ohio, 514 U.S. 334 (1995)
2
Miller v. California, 413 U.S. 15 (1973)
3,22
6
7
8
9
10
11
12
13
14
15
16
17
N. A. A. C. P. v. Button, 371 U.S. 415 (1963)
18
Near v. Minnesota, 283 U.S. 697 (1934)
4,16,21,22
19
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)
5,23
New York Times, Co. v. Sullivan, 376 U.S. 254(1964)
3,6
20
6
21
22
New York Times Co. v. United States,403 U.S. 713 (1971)
5
23
Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)
24
Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983) 4,20
25
6
26
Pittsb urgh Press Co. v. Pittsb urgh Com. on Human Relations, 413 U.S. 376
(1973)
27
Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972)
3
28
vii
16
1
Progressive, Inc. v. United States, 467 F.Supp. 990, (W.D. Wis. 1979)
21
R.A.V. v. St. Paul, 505 U.S. 377(1992)
3,10,16
Regina v. Hicklin, [1868] L. R. 3 Q. B. 360
22
Reno v. ACLU, 521 U.S. 844 (1997)
19
6
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)
18,19
7
Rice v. Paladin Enterprises, Inc. 128 F.3d 233; (4th Cir. 1997)
13,14,22
Riley v. National Fed'n of the Blind of North Carolina, Inc., 487 U.S. 781
(1988)
7
Roth v. United States, 354 U.S. 476 (1957)
22
2
3
4
5
8
9
10
11
S.O.C. v. Mirage Hotel-Casino, 117 Nev. Adv. Rep. 36, 23 P.3d 243 (2001) 5
12
S.O.C., Inc. v. County of Clark, 152 F.3d 1136 (9th Cir, 1998)
2,6,7
Sable Communications of California, Inc. v. Federal Communications
Commission, 492 U.S. 115 (1989)
4,20
Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd.,
502 U.S. 105 (1991)
3
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975)
3,4,5
Tally v. California, 362 U.S. 60 (1960)
16
20
Texas v. Johnson , 491 U.S. 397 (1989)
3,16
21
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503
(1969)
16
23
Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir.1993)
2
24
United States v. Barnett, 667 F.2d 835 (9th Cir. 1982)
12,13,14,15,22
25
6,8,9
26
United States v. Buttorff, 761 F.2d 1056, 1066 (5th Cir. 1985) U.S. 215
(1990)
27
United States v. Dahlstrom , 713 F.2d 1423 (9th Cir. 1983)
14,15,20
13
14
15
16
17
18
19
22
28
viii
1
United States v. Damon, 676 F.2d 1060 (5th Cir. 1982)
15
United States v. Estate Preservation Services, 202 F.3d 1093 (9th Cir. 2000)
6,7
United States v. Estate Preservation Service, 38 F.Supp . 846 (E.D. Cal. 1998)
7
United States v. Freeman, 761 F.2d. 549 (9th Cir. 1985)
14,15,22
6
United States v. Jenkins, 974 F.2d 32 (5th Cir. 1992)
22
7
United States v. Kaun, 827 F.2d 1144 (7th Cir. 1987)
9,10
United States v. Kelly, 769 F.2d 215 (4th Cir. 1983)
15
United States v. McDaniel, 545 F.2d 642 (9th Cir. 1976)
11
United States v. Moss, 604 F.2d 569 (8th Cir. 1979)
15
12
United States v. O’Brien, 391 U.S. 367 (1968)
3,16
13
United States v. Playboy Entertainment Group, Inc. 529 U.S. 803 (2000)
19,20
United States v. Raymo nd, 228 F.2d 804 (7th Circuit. 2000)
10
United States v. Rowlee, 899 F.2d 1275 (2nd Cir. 1990)
15
2
3
4
5
8
9
10
11
14
15
16
17
United States v. Varani, 435 F.2d 758 (6th Cir. 1970)
18
United States v. White, 583 F. Supp . 1118 (D. Minn. 1984)
8
19
United States v. White, 769 F.2d 511 (8th Cir. 1985)
8
Vance v. Universal Amusement Co., 445 U.S. 308, (1980)
22
Venetian Casino Resort, LLC v. Local Joint Executive Board of Las
Vegas; Culinary Wo rkers Union, Local No.226, 45 F. Supp. 2d 1027
(D. Nev. 1999)
2
20
10
21
22
23
24
25
Village of Sch aumburg v. Citizens for a Better Environment, 444 U.S. 620 7
(1980)
26
Virginia v. Black, 123 S. Ct. 1536, (2003)
2,16
27
Virginia State Bd. of Pharmacy v. Virginia Citizens Consum er Council,
425 U.S. 748 (1975)
6
28
ix
1
2
Walnut Properties, Inc. v. City of Wh ittier, 861 F.2d 1102 (9th Cir. 1988)
2
Ward v. Rock Against Racism, 491 U.S. 781 (1998)
17
Young v. American Mini Theatres, 427 U.S. 50 (1976)
19
3
4
statutes
5
6
18 U.S.C. 2241
7
8
18 U.S.C. 2251
11
9
26 U.S.C. § 6700
10
Nevada Constitution, Article 1, Section 9
4,5
10
11
treatises
12
M. Nimmer, Nimmer on Freedom o f Speech, (1984)
2
13
R. Smolla, Smolla and Nimmer on Freedom o f Speech, (1996)
17
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
x
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
xi
1
2
POINTS AND AUTHORITIES
I.
Introduction
3
This case involves an attempt by the government to enjoin certain material by Defendants.
4
Among the items that the government wishes to ban is the book The Federal Mafia: How
5
Government Illegally Imposes and Unlawfully Collects I ncome Taxes. At the April 11, 2003
6
preliminary injunction hearing, the Court noted several cases that might have bearing on the matter
7
8
at hand. In order to assess the relevance of these cases, it is important to first clarify what the
9
government is requesting of the Court. The government asks for a wide-ranging injunction against
10
Mr. Schiff and his cohorts to prohibit expression concerning Mr. Schiff’s unorthodox theories about
11
the tax system. The Court has already described these theories as frivolous and meritless. As stated
12
13
14
previously, we take no position on the truth or falsity of any of Mr. Schiff’s theories. Nor do we have
a view concerning certain aspects of the proposed injunction.
15
That is not to say, as the government suggested at the April 11, 2003 hearing, that we concede
16
the appropriateness of such an injunction. Whether Defendants can or should be enjoined from
17
helping people fill out their tax returns or from representing them at IRS hearings is beyond the
18
19
scope of our co ncerns. Nor do face to face statements at seminars or promotional material
20
necessarily have the same status as Mr. Schiff’s book. However, the attempt to enjoin distribution
21
of The Federal Mafia clearly violates rights protected by the First Amendment and the Nevada
22
Constitution.
23
II
Legal Standards
24
25
A.
Standards for a preliminary injunction
26
A preliminary injunction should only be issued "upon a clear showing of either (1) probable
27
success on the merits and possible irreparable injury or (2) sufficiently serious questions going to
28
1
1
2
the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly
toward the party requesting the preliminary relief." S.O.C., Inc. v. County of Clark, 152 F.3d 1136,
3
1142 (9th Cir, 1998); Ebel v. City of Corona, 698 F.2d 390, 392 (9th Cir. 1983).
Under these
4
5
standards injunctive relief is appropriate when either of this two tests are met. Venetian Casino
6
Resort, LLC v. Local Joint Executive Board of Las Vegas; Culinary Workers Union, Local No.226,
7
45 F. Supp. 2d 1027, 1031 (D. Nev. 1999); Walnut Properties, Inc. v. City of Whitti er, 861 F.2d 1102
8
(9th Cir. 1988). These are not two separate tests, but "merely extremes of a single continu um."
9
10
Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1528 (9th Cir.1993).
11
B.
12
The government is asking for a prior restraint on speech. The Supreme Court has
13
distinguished between prior restraints and punishment of speech after the fact. Alexander v. U.S., 509
14
Standards for a prior restraint on speech
U.S. 544, 553 (1993):
15
18
“The term ‘prior restraint’ is used ‘to describe administrative and judicial orders
forbidding certain communications when issued in advance of the time that such
communications are to occur.’ M. Nimmer, Nimmer on Freedom of Speech, 4.03, p.
4-14 (1984). Temporary restraining orders and permanent injunctions -- i. e., court
orders that actually forbid speech activities -- are classic examples of prior restraints.”
19
The attempt to ban the book, The Federal Mafia, raises a significant constitutional issue. Unlike
16
17
20
promotional material, and perhaps the seminars, the book contains significant political discourse
21
22
caustically and significantly criticizing the government for its “criminal” actions. At least that is Mr.
23
Schiff’s contention. Regardless of what the Court may think about this harangue, criticism of the
24
government is fully protected as core political speech, which enjoys the broadest constitutional
25
protection. See, McIntyre v. Ohio, 514 U.S. 334, 346 (1995).
26
This is not to say that the book is therefore sacrosanct. Freedom of speech is not absolute.
27
28
Virginia v. Black, 123 S. Ct. 1536 (2003). There is, however, a strong presumption of
2
1
2
unconstitutionality that the government m ust meet in order to sustain a prior restraint on protected
expression. Sout heastern Promoti ons, Ltd. v. Conrad, 420 U.S. 546, 558 (1975). See also, FW/PBS,
3
Inc. v. City of Dallas, 493 U.S. 215, 226 (1990); R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992).
4
“The First Amendment gen erally prevents government from proscribing speech, see,
e. g., Cantwell v. Connecticut, 310 U.S. 296, 309-311, 84 L. Ed. 1213, 60 S. Ct. 900
(1940), or even expressive conduct, see, e. g., Texas v. Johnson, 491 U.S. 397, 406,
105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989), because of disapproval of the ideas
expressed. Content-based regulations are presumptively invalid. Simon & Schuster,
Inc. v. Members of N. Y. Stat e Crime Victims Bd., 502 U.S. 105, 115, 116 L. Ed . 2d
476, 112 S. Ct. 501 (1991); id., at 124 (KENNEDY, J., concurring in judgment);
Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S. 530, 536,
65 L. Ed. 2d 319, 100 S. Ct. 2326 (1980); Police Dept. of Ch icago v. Mosley, 408 U.S.
92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972).” 505 U.S. at 382.
5
6
7
8
9
10
11
12
Speech, however, can be proscribed in a limited number of areas. Id at 383. Yet in each of
13
these areas government must demonstrate that the applicable constitutional test is met. Thus, for
14
someone to be punished for obscenity the expression at issue must meet the three-part test set forth
15
16
in Miller v. California, 413 U.S. 15, 24 (1973). Defamation is left unprotected only under the
17
standards set forth in New York Times v. Sullivan, 376 U.S. 254, 279-280(1964). Regulation s
18
concerning commercial speech must adhere to Central Hudson Gas and Electric Corp. v. Public
19
Service Com’m. 447 U.S. 557, 566 (1980). Expression considered “fighting words” are protected
20
unless they meet the test in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Even restrictions on
21
22
23
expressive conduct are governed by the O’Brien test. Unit ed States v. O’Brien, 391 U.S. 367, 377
(1968).
24
The particular theory under which the government is attempting to ban The Federal Mafia
25
is crucial because each constitutional test is different. Restrictions on commercial speech and
26
expressive conduct require only intermediate level scrutiny. See, Central Hudson, supra; O’Brien,
27
28
supra. The content of constitutionally protected speech, however, requires strict scrutiny. It
3
1
2
therefore may only be regulated if it is necessary to promote a compelling interest and the
government must choose the least restrictive means to further the articulated interest. Sable
3
Communications of California, Inc. v. Federal Communicati ons Commission, 492 U.S. 115, 126
4
5
(1989). See also, Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983).
6
Moreover, the standards the government must meet in order to secure a prior restraint against
7
noncommercial political speech are more stringent than the test for criminal convic tions.
8
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-559 (1975).
9
In the instant case, the government has taken a scattershot approach to defend its attempt to
10
11
censor The Federal Mafia. It has alternately argued that the book is either false commercial speech,
12
incitement to imminent lawless action, or aiding and abetting a crime. The cases cited by the Court
13
at the April 11, 2003 hearing involved these types of situations. In the instant case, the government
14
has attempted to argue that the book fits all of these categories. Unfortunately, it has failed to do the
15
16
required analysis to see if the cases cited actually apply to the instant circumstan ce. In fact, they do
17
not.
18
III.
19
The government is unlikely to succeed on the merits in attempting to ban The Federal
Mafia.
20
The Supreme Court has long distinguished between a prior restraint, where the government
21
limits or even bans speech before it has the chance to be expressed, and punishment of speech that
22
runs afoul of various laws. This was made clear in the seminal case of Near v. Minnesota, 283 U.S.
23
697, 720 (1934).
24
25
26
27
“The fact that the liberty of the press may be abused by miscreant purveyors of
scandal does not make any the less necessary the immunity of the press from
previous restraint in dealing with official misconduct. Subsequent punishment for
such abuses as may exist is the appropriate remedy, consistent with constitutional
privilege.”
28
4
1
2
The distinction between a prior restraint and subsequent punishment of speech is also
reflected in Article I, Section 9 of the Nevada Constitution – “Liberty of speech and the press.”
3
4
5
“Every citizen may freely speak, write and publish his sentiments on all subjects
being responsible for the abuse of that right; and no law shall be passed to restrain or
abridge the liberty of speech or of the press.”1
6
The Supreme Court’s aversion to prior restraints has extended even to situations where the
7
government has claimed n ational security as the rationale. See, New York Times Co. v. United Stat es,
8
403 U.S. 713 (1971), and the right to a fair trial, see, Nebraska Press Association v. Stuart, 427 U.S.
9
10
539 (1976). In the former case, the Court refused to enjoin the New York Times and the Washington
11
Post from publishing the Pentagon Papers, which consisted of classified documents concerning the
12
Vietnam war. 403 U.S. at 714.
13
14
Nebraska Press Association, while not involving national security claims, invalidated a gag
order placed on the press concerning a sensational murder trial. 427 U.S. at 562. Even the Sixth
15
16
Amendment right to a fair trial untainted by pretrial publicity could not justify a prior restraint. The
17
presump tive unconstitutionality of prior restraints does not mean that there is an absolute prohibition
18
against them. Unless, however, the prior restraint at issue fits into a very narrow group of exceptions
19
to the general rule, the restriction cannot withstand constitutional scrutiny. Southeastern
20
Promotions, supra, 420 U.S. 558-559. Here, the government has not and cannot establish that the
21
22
proposed prior restraint of The Federal Mafia fits into any of the “exceptions” to the general rule
23
against prior restraints. The injunction, therefore, violates the constitutional guarantee of freedom of
24
expression.
25
A.
The Federal Mafia is not commercial speech.
26
27
28
1
The Nevada Supreme Court has construed this provision as providing protection that
is neither more or less extensive than that provided by the First Amendment to th e United States
Constitution. S.O.C. v. Mirage Hot el-Casino, 117 Nev. Adv. Rep. 36, 23 P.3d 243, 251 (2001).
5
1
2
One claim made by the government to bolster its case is that The Federal Mafia is
comm ercial speech. If this were so, then the book could be enjoined if it were shown that the
3
commercial speech was false or misleading or if it advertised and illegal product or service. See,
4
5
Central Hudson, supra. Thus, false or misleading commercial speech by Mr. Schiff, or anyone else,
6
can be enjoined. See, Unit ed States v. Estate Preservati on Servi ces, 202 F.3d 1093,1106 (9th Cir.
7
2000) and United Stat es v. Buttorff, 761 F.2d 1056, 1066 (5th Cir. 1985). Simply calling something
8
commercial speech, however, does not necessarily make it so.
9
10
The first inquiry required concerns exactly what content in the book the government claims
11
is false and misleading. This is particularly important because, as the Court has already noted, the
12
book is primarily comprised of autobiographical material and political d iatribe, which is clearly
13
noncommercial content. Mr. Schiff’s theories concerning the tax code -- whether true or false,
14
frivolous or serious -- are not commercial speech.
15
16
Commercial speech is expression that does no more than p ropose a commercial transaction.
17
Cincinnati v. Discovery Network, 507 U.S. 410, 423 (1998); Bolger v. Youngs Drug Products Corp.,
18
463 U.S. 60, 66 (1983); S.O.C., Inc. v. County of Clark, supra; see also, Pittsburgh Press Co. v.
19
Pittsburgh Com. on Human Relations, 413 U.S. 376, 385 (1973); Virgi nia S tat e Bd. of Pharmacy
20
v. Virginia Citizens Consumer Council, 425 U.S. 748, 772, n.24 (1975). The purportedly offending
21
22
23
parts of the book that the government claims are the basis for its attempt to stop distribution are Mr.
Schiff’s “ frivolous” tax theories and examples of form s showing these theories.
24
Even if we were to assume that the government is correct in its assertions that those theories
25
are meritless, it still would not mean that the content in question is commercial speech. Neither the
26
theories nor the alleged instructions could be viewed as “ propos ing a commercial transaction.”
27
28
Falsity alone is an insufficient basis to ban noncommercial expression. See, New York Times v.
6
1
2
Sullivan, supra at 271 [“The constitutional protection does not turn upon ‘the truth, popularity, or
social utility of the ideas and beliefs which are offered.’quoting N. A. A. C. P. v. Button, 371 U.S.
3
415, 445 (1963)]. The fact that Mr. Schiff sells his book is insufficient to render it commercial speech.
4
5
Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 647 (1981); Gaudi ya
6
Vaishn ava Soci ety v. City of San Franci sco, 952 F.2d 1059, 1063 (9th Cir. 1990). If it were, then
7
every boo k, newsp aper, movie or other mass medium of communication would similarly be
8
relegated to regulation under intermediate scrutiny, as would many lectures and political speeches.
9
10
Nor does, as the government argues, the presence of a few pages of advertising at the end of the 304
11
page books render the entire book commercial. If the presence of any advertising at all rendered the
12
entire work commercial, then virtually every newspaper and magazine would be ineligible for full
13
constitutional protection. Courts have been unwilling to rule as such. See, Village of Schaumburg
14
v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980). S.O.C. v. Clark County, supra, at
15
16
1144; Riley v. National Fed'n of the Blind of North Carolina, Inc., 487 U.S. 781, 796 (1988).
17
Thus, The Federal Mafia, whatever its merits or lack of them might be, cannot be banned as
18
false commercial speech. The Ninth Circuit’s decision in Estate Preservation, supra, does not
19
contrad ict this. In that decision, the material in question was not a 304 page book primarily
20
comprised of autobiography and political diatribe criticizing the government. Here, the facts and the
21
22
record do not support a finding that The Federal Mafia can be banned as commercial speech. Even
23
the sections that the government objects to are not commercial in nature. As enticing as the
24
commercial speech theory might be to the government, it cannot be commercially applied to the
25
book.
26
In Unit ed States v. Estate Preservati on Servi ces, supra, at 1106, the Ninth Circuit upheld
27
28
an injunction against the defendant issuing its promotional material. The Court of Appeals did not
7
1
2
discuss the material in question but merely referred to it as commercial speech that can be enjoined
if it is false or misleading. The District Court, however, had specified that the material in question was
3
“marketing material” for the sale of “asset preservation” trusts, which was the business those
4
5
defendants were involved in. Unit ed States v. Estate Preservati on Servi ce, 38 F.Supp. 846, 849
6
(E.D. Cal. 1998). Thus, it was clear the speech proposing a comm ercial transaction was commercial
7
in nature. Therefore, it was subject to an injunction.
8
Similarly, in United States v. White, 769 F.2d 511, 518 (8th Cir. 1985) the Court enjoined the
9
10
Defendant from disseminating certain promotional material. However, unlike the attempt to ban The
11
Federal Mafia the Court made it clear that the injunction was limited to commercial speech. Id. [“In
12
particular, the injunction specifically prohibits only appellant's commercial speech that has been
13
shown to be false or fraudulent, and thus misleading, and that is likely to promote illegal activity.”]
14
In White, the District Court, made specific findings that: “Defendant has engaged in the following
15
16
specific acts: (a) he has organized an entity (MSEC) and (b) he has sold a plan or arrangement (the
17
Patriots Pursuit of Happiness) for the principal purpose of securing material federal tax benefits to
18
his customers through the MSEC/Patriot's Pursuit of Happiness Plan which defendant knows, or has
19
reason to know, is false or fraudulent in nearly all respects.” Unit ed States v. White, 583 F. Supp.
20
1118 (D. Minn. 1984). The material at issue in White related to a commercial “plan” set up by the
21
22
23
Defendant. Thus, the commercial m aterial involved is clearly distinguishable from The Federal
Mafia, which cannot be deemed commercial speech.
24
The situation was also similar in United Stat es v. Buttorff, 761 F.2d 1056 (5th Cir. 1985).
25
There the Defendant “promoted, sold, and serviced a trust package” where the price was determined
26
based on the value of the assets placed in the trust. Id. at 1057. Again, this was not a case of a court
27
28
banning a book. Instead, the injunction in Buttorff was expressly limited only to specifically
8
1
2
commercial speech. Id. at 1065. [“We narrowly construe the injunctive order to enjoin appellant
from promoting, selling, or servicing the Constitutional Pure Equity Trust and similar schemes only
3
if the trust or similar scheme is sold, promoted, or serviced in a context which is to some extent
4
5
6
7
8
commercial, . . .”] The speech in question involved promotional material trying to sell the
Defendan t’s trusts and personal services. “ Id. at 1066.
There is no question that under Cent ral Hudson, supra , commercial speech deemed false can
be enjoined. Here, however, the government has not shown that The Federal Mafia is commercial
9
10
in nature. In fact, both the Co urt and the government apparently concede that the book is a political
11
diatribe with significant autobiographical content. It clearly does more that propose a commercial
12
transaction. It is therefore n ot commercial speech and cannot be regulated as such. The bo ok is
13
entitled to full First Amendment protection afforded political speech.
14
15
The Federal Mafia does not urge and is not likely to lead to imminent lawless
action.
16
On page 5 of the April 10, 2003 brief in Reply to the ACLU’s initial brief, the government
17
B.
acknowledges the inapplicability of the constitutional standards set forth in Brandenburg, supra, 395
18
19
U.S. at 447, requiring proscription of speech only to avoid an imminent act of violence or
20
lawlessness. The government, however, asserts that they have not chosen to use a Brandenburg
21
theory to attempt to ban The Federal Mafia . But Brandenburg cannot be disposed of that easily. It
22
is not voluntary doctrine to be used at the government’s discretion, but a constitutional limit on
23
attempts at restricting speech. The Supreme Court made this clear in Hess v. Indiana, 414 U.S. 105,
24
25
26
27
28
108 (1973).
“Under our decisions the constitutional guarantees of free speech and free press do
not permit a State to forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action." Brandenburg v. Ohio,
9
1
2
395 U.S. 444, 447 (1969). (Emphasis added.)
Despite their disavowal of Brandenburg, the government still argues that banning the book
3
is necessary because it incites people to break the law, even if such incitement is not imminent. This,
4
5
6
7
however, is exactly what the Seventh Circuit warned of in Unit ed States v. Kaun, 827 F.2d 1144,
1151, n. 3 (7th Cir. 1987).
12
“Under Brandenburg, therefore, a person may not be prosecuted for merely
advocating unlawful activity -- only for speech that leads to "imminent lawless
action.’ However, the legislative history of § 6700 makes clear that in order to hold
the promoter of an abusive tax shelter liable, ‘there need not be reliance by the
purchasing taxpayer or actual under reporting of tax.’ S. Rep. No. 97-494, 97th
Cong., 2d Sess. 267, reprinted in 1982 U.S. Code Cong. & Admin. News 781, 1015.
It is therefore possible that the broad scope of § 6700 may reach a person who merely
advocates the nonpayment of taxes in general. This result would clearly run afoul of
Brandenburg.”
13
The Kaun Court issued its injunction because the material in question was comm ercial
8
9
10
11
14
speech or involved situations where imminent lawless action was likely. 827 F.2d at 1151-1152. The
15
16
same situation occurred in United States v. Raymond, 228 F.2d 804, 815 (7th Circuit. 2000) including
17
the commercial speech aspect. The Court reiterated its statement from Kaun that the injunction was
18
a narrow one and could only be violated if the defendants actually persuaded others directly or
19
indirectly to violate tax laws or in a situation where there was a likelihood of an imminent lawless
20
action. Id at 815-816. In contrast, the injunction req uested here is much broader. All Mr. Schiff
21
22
would have to do to be in contempt would be to distribute his book to anybody. Even giving the
23
book to the ACLU, the press or the government itself would be prohibited. Unlike the limitation of
24
the injunction to Brandenburg standards, here the government is requesting that the Court engage
25
in straight old-fashioned book-banning. This is constitutionally impermissible.
26
C.
The Federal Mafia cannot be banned for aiding and abetting crime.
27
28
There is no doubt that words and even books can be the basis for criminal p rosecution if
10
1
2
they are part of the essential elements of a crime. R.A.V. supra, 505 U.S. at 382-383. The fact that a
ransom note is expressive does not immunize its maker from prosecution for kidnaping. Nor is a
3
charge of aiding and abetting a crime prohibited when written or spoken material is used to persuade
4
5
or instruct the principals. United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970). It is equally
6
true, however, that courts have rejected laws restricting speech that were based on how a reader
7
might possibly use the material in the future. See, Ashcroft v. Free Speech Coalition, 535 U.S. 234,
8
245 (2002):
9
10
11
12
13
14
“Congress may pass valid laws to protect children from abuse, and it has. E.g., 18
U.S.C. 2241, 2251. The prospect of crime, ho wever, by itself does not justify laws
suppressing protected speech. See Kingsley Int'l Pictures Corp. v. Regents of Univ.
of N. Y., 360 U.S. 684, 689, 3 L. Ed. 2d 1512, 79 S. Ct. 1362 (1959) ("Among free
men, the deterrents ordinarily to be applied to prevent crime are education and
punishment for violations of the law, not abridgment of the rights of free speech")
(internal quo tation marks and citation omitted))”
Several of the cases cited by the government involve actual criminal charges. The crime of
15
16
aiding and abetting, however, does not occur in a vacuum. Nor does it occur hypothetically. Instead,
17
it is determined cases-by-case based on the particular facts and circumstances surrounding the
18
underlying crime and by the relationship between the person or persons allegedly aiding and abetting
19
the underlying crime and the principals who actually committed the crime. See, Unit ed States v.
20
McDaniel, 545 F.2d 642, 644 (9th Cir. 1976).
21
22
Here, however, there are no principals and no specific crime. The government argues that The
23
Federal Mafia may entice, persuade or direct people on how to break the law. However, they have
24
not tied the book to any specific act of tax evasion not to any specific principals who committed such
25
crimes. The only testimony at the April 11, 2003 hearing was that the book did not do these things,
26
but merely caused the witnesses to look further into the matters discussed in the book. As in Free
27
28
Speech Coalition, supra, an attempt to ban speech because it may possibly be involved in a potential
11
1
crime in the future is insufficient basis for banning speech.
2
There is no dispute about the fact that if the government believes that, in any specific case,
3
Mr. Schiff aided and abetted a particular act of criminal tax evasion utilizing The Federal Mafia,
4
5
alone or in conjunction with other expression, it could bring criminal charges against him for doing
6
so. Then it would be up to a jury to determine if the specific facts and circumstances presented at trial
7
warranted conviction. See, McDaniel, supra. What cannot be done, ho wever, is to sustain criminal
8
charges for aiding and abetting simply by pre sen ting certain text fro m the book and merely
9
10
presuming that there are some unnamed principals that the book aided and abetted in their crime.
11
Yet, that sort of guilt by p resumption is exactly what the government is attempting to do here,
12
despite the fact that the standards for a prior restraint are more stringent than for a criminal
13
conviction. See, Alexander, supra, 509 U.S. at 553; BE & K Const ruction v. NLRB, 536 U.S. 516, 530
14
(2002).
15
16
The government argues that Unit ed States v. Barnett, 667 F.2d 835 (9th Cir. 1982) serves as
17
the basis for an injunction of The Federal Mafia. In that case the Ninth Circuit ruled that the author
18
of instructions on how to manufacture the drug PCP could be charged with aiding and abetting the
19
crime by another individual of actually making the drug. Id. at 843. The issue, the Court said, is one
20
for the jury. Id.
21
22
Barnett is clearly distinguishable from the instant case in three important ways. The first is
23
that the drug making manual did not contain any of the political or autobiographical material that
24
comprises the Schiff book. This is significant. At the April 11, 2003 hearing, the government called
25
no witnesses. Mr. Schiff called several witnesses, all of whom said that after they read the book they
26
thought about the theories promoted and were prompted to do m ore research. Moreover, The
27
28
Federal Mafia contains descriptions of the legal difficulties Mr. Schiff encountered while pursuing
12
1
2
his unorthodox legal analysis. In fact, the majority of the book, as the title suggests, is that the federal
government acts criminally in regard to the income tax system and tries to prosecute those who, in
3
Mr. Schiff’s view, stand up for their rights. The book even contains warnings about possible legal
4
5
6
7
8
problems that may occur if one follows the theories contained therein. In contrast, the book in
Barnett contained nothing but drug making instructions.
The second distinction between the two cases is that Barnett was a criminal case. The issue
wasn’t even about a criminal conviction but concerned the issue of probable cause for a search
9
10
11
warrant. The government’s burden is lower for a criminal conviction than for the prior restraint
requested here. The probable cause standard is much lower still.
12
In Barnettt the Co urt ruled that the question of wheth er the manual’s distribution to the
13
person who was charged with manufacturing PCP constituted aiding and abetting the crime was a
14
matter for the jury to determine. Id. at 843. Clearly, this determination must be made based on all
15
16
of the facts and circumstan ces presented at trial. Here, in contrast no one is accused of a crime.
17
Instead, the government is seeking to enjoin the distribution of the book on the theory that someone
18
somewhere may be aided and abetted to commit the crime of tax evasion in the future. Certainly no
19
aiding and abetting of someone’s criminal activity was est ablished at the April 11, 2003 hearing
20
where the government presented no witnesses.
21
22
In essence, the government is attempting to ban the distribution of The Federal Mafia
23
because it may have a tendency to prompt people to commit a criminal act. This, however, is
24
prohibited by Brandenburg, which limited the reach of the “fighting words” doctrine set forth in
25
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). As initially formulated in Chaplinsky, the
26
government could proscribe speech that by its very nature caused injury or had a tendency to cause
27
28
a breach o f the peace. Id. at 573. Brandenburg placed a constitutional limit on that doctrine. Hess,
13
1
2
supra. Thus, for example, in Free Speech Coalition, 535 U.S. at 253, the U.S. Supreme Court
overturned a law that criminalized pornography that appeared to utilize real children even though it
3
was made using young looking adults or computer generated images. Even though the government
4
5
6
7
8
claimed that such material was used by child molesters as part of their criminal activities, such a
claim was not sufficient justification for a prior restraint. Id.
Rice v. Paladin Enterprises, Inc. 128 F.3d 233; (4th Cir. 1997) presents a similar contrast to
the instant case as Barnett. In Rice, however, the publisher was accused of aiding and abetting
9
10
11
murder through an instructional manual. The publisher stipulated that it was his sole intent in
providing the book to the p rincipal to assist with the murder. Id. The issue presented was whether
12
or not the publisher could be criminally liable for aiding and abetting that sp ecific crime. The Court
13
said that the First Amendment did not bar such a conviction if the facts and circumstances presented
14
to the jury proved the case under the appropriate standards. As in Barnett, supra, Rice contained
15
16
no suggestion of an injunction banning the book. While both these cases support the possibility of
17
criminal penalties for those who aid and abet a crime using written material, neither provides any
18
supp ort for the idea that these books can be censored out of existence by enjoining their distribution.
19
The requirement for a case-by-case factual analysis for aiding and abetting was set forth by
20
the Ninth Circuit in United States v. Freeman, 761 F.2d. 549, 552 (9th Cir. 1985).
21
22
23
24
25
26
“Where there is some evidence, however, that the purpose of the
speaker or the tendency of his words are directed to ideas or
consequences remote from the commission of the criminal act, a
defense based on the First Amendment is a legitimate matter for the
jury's consideration.”
Freeman was an aiding and abetting tax case. The Court emphasized the need for specific
factual inquiries by the jury in order to sustain a criminal conviction. Id. No suggestion of an
27
28
injunction banning a book was entertained. The case, in fact, did not involve a book at all, but face
14
1
2
to face sem inars. Unlike a 304 page book such as The Federal Mafia, which takes time to read and
digest, live face to face meetings have a greater immediacy and by nature allow less time and
3
opportunity for reflection. The Court noted the importance of the time factor, requiring the jury to
4
5
determine “if the intent of the actor and the objective meaning of the words used are so close in time
6
and purpose to a substantive evil as to become part of the ultimate crime itself.” Id. at. 552. In
7
contrast, no such factual inquiry is attempted here.
8
A similar analysis, but with a different result, occurred in United States v. Dahlstrom, 713
9
10
F.2d 1423, 1428 (9th Cir. 1983). There again individuals who created a membership organization were
11
accused of aiding and abetting tax fraud. In this case, however, the convictions were reversed based
12
on the factual record not supporting all of the elements of the crime. The Ninth Circuit noted that
13
mere advocacy of lawless action was insufficient to overc ome constitutional protections even in
14
national security cases, much less where the issue is taxes. Id.
15
16
Taken together Freeman, supra, and Dahlstrom, supra, reiterate the Ninth Circuit’s position
17
from Barnett, supra. While words can be used to aid and abet crime, a criminal conviction can only
18
be sustained if the specific facts and circumstances surrounding the relationship between the
19
expressive action in questio n and the criminal acts o f the principals are sufficiently co nnected in
20
terms of time and impact. Nothing in these cases comes close to supp orting the government’s
21
22
contention that the words of certain sections alone can substitute for the aforementioned analysis in
23
establishing aiding and abetting. Clearly none of these cases lend any support to the idea of banning
24
a book because it might be used by some unknown person sometime in the future to commit a crime.
25
In the absence of actual principals who committed actual crimes there can be no censorship based
26
on aiding and abetting.
27
28
This ruling is consistent with those in other circuits where individuals have been criminally
15
1
2
charged with aiding and abetting tax evasion. See, Uni ted Sta tes v. Moss, 604 F.2d 569 (8th Cir.
1979); United Sta tes v. Damon, 676 F.2d 1060 (5th Cir. 1982); Unit ed States v. Kelly, 769 F.2d 215,
3
217 (4th Cir. 1983); United Sta tes v. Rowlee, 899 F.2d 1275, 1279 (2nd Cir. 1990). All of these cases
4
5
are similar in that the all involved criminal prosecutions for aiding and abetting. All of the criminal
6
principals had face to face meetings with the aiding and abetting defendants, usually in the form of
7
a tax advice or tax shelter group. None of these cases involved an attempt to ban a book with
8
extensive political content. While clearly the First Amendment does not provide immunity from
9
10
11
charges of aiding and abetting a crime, it is similarly true that noncommercial speech cannot be
banned because of a lack of constitutional protection as the government argues.
12
D.
13
The government argues that the proposed ban of the book The Federal Mafia should be
14
The proposed injunction would ban pure speech not conduct.
analyzed as merely a restraint of conduct rather than speech. However, the alleged “non-speech”
15
16
conduct referred to is the book itself, which is pure speech. The argument made by the government
17
that the distribution of a book, unlike its creation, is not fully protected expressive activity is totally
18
incorrect. “Liberty of circulating is as essential to that freedom as liberty of publishing; indeed,
19
without the circulation, the publication would be of little value.” Tally v. California, 362 U.S. 60
20
(1960), quo ting Lovell v. Griffin, 303 U.S. 444, 452 (1938). Restrictions on both the sale and
21
22
distribution of expressive materials are prior restraints subject to strict constitutional scrutiny. See,
23
FW/PBS, supra; Organization for a Bett er Austin v. Keefe, 402 U.S. 415 (1971); Near v. Minnesota,
24
supra.
25
1.
26
The distribution of a book is not an “expressive act” under United States
v. O’Brien, but pure speech.
27
In Unit ed States v. O'Brien, supra, 391 U.S. at 376-377, the Supreme Court set forth an
28
16
1
2
intermediate level scrutiny test for restrictions on expressive conduct. This test applies when speech
and non-speech elements are present in the same course of conduct. Id. at 376. This test has been
3
applied to expressive conduct in Texas v. Johnson, 491 U.S. 397, 405 (1989)[flag burning]; Tinker
4
5
v. Des Moines Independent Community School Dist., 393 U.S. 503, 505 (1969)[wearing of
6
armbands in school]; R. A. V. supra, [cross burning]. The common element that all of the expressive
7
conduct cases have is that the conduct at issue is not inherently expressive. If done for an expressive
8
purpose, however, the act takes on a certain level of constitutional protection. Virgi nia v. Black, 123
9
10
S. Ct. 1536, No. 01-1107, 2003 U.S. LEXIS 2715 (U.S. April 7, 2003) at *41-*42. The reason The
11
Federal Mafia itself cannot be treated as conduct is obvious. In contrast to the expressive conduct
12
cases warranting intermediate scrutiny, the book is inherently expressive, as opposed to an inherently
13
non-expressive act done for expressive purposes.
14
15
The government’s is seeking a total ban on the book not a time, place or
manner restriction.
16
“Government regulation of expressive activity is content neutral so long as it is "justified
17
2.
without reference to the content of the regulated speech." Ward v. Rock Against Racism, 491 U.S.
18
19
20
21
22
781, 791 (1998)[emphasis in original]; see also, Clark v. Community for Creati ve Non-Violence, 468
U.S. 288, 293 (1984); Heffron sup ra, at 648 (1981).
While the government attempts to argue that the proposed ban of The Federal Mafia is
content neutral, it can point to nothing other than the content of the book that it finds objectionable.
23
The entire argument of the government is that people will read Mr. Schiff’s book and believe it to the
24
25
point that some of them may even act based on its theories. Clearly the proposed ban of the book
26
cannot be considered a mere time, place and manner restriction, which regulates “not what is being
27
said, but merely such maters as when, where and how loud.” R. Smolla, Smolla and Nimmer on
28
17
1
2
Freedom of Speech, 4.03, p. 8-57 (1996)[emphasis in original]. In Ward v. Rock Against Racism,
supra, at. 791 the Court noted that the rationale asserted by the government for its attempt to restrict
3
expression determines whether or not the regulation is to be deemed content neutral. In Boos v.
4
5
Barry, 485 U.S. 312, 320-321 (1988) the Supreme Court reiterated that once the government provides
6
a rationale for a speech restriction based on the direct effects of the content of that speech, then the
7
governmental action cannot be treated as content neutral.
8
“The principal inquiry in determining content neutrality, in speech cases generally
and in time, place, or manner cases in particular, is whether the government has
adopted a regulation of speech because ofdisagreement with the message it conveys.
Community for Creative Non-Violence, supra, at 295. The government's purpose is
the controlling consideration. A regulation that serves purposes unrelated to the
content of expression is deemed neutral, even if it has an incidental effect on some
speakers or messages but not others. Renton v. Playtime Theatres, Inc., 475 U.S. 41,
47-48 (1986). . . .
9
10
11
12
13
18
Regulations that focus on the direct impact of speech on its audience present a
different situation. Listeners' reactions to speech are not the type of "secondary
effects" we referred to in Renton. To take an example factually close to Renton, if the
ordinance there was justified by the city's desire to prevent the psychological damage
it felt was associated with viewing adult movies, then analysis of the measure as a
content-based statute would have been appropriate. The hypothetical regulation
targets the direct impact of a particular category of speech, not a secondary feature
that happens to be associated with that type of speech. ”
19
Here there is nothing other than the government’s admitted d isagreement with the message
14
15
16
17
20
conveyed by Mr. Schiff’s book used as a justification for the attem pt at censorship. The desire to
21
22
23
24
25
26
recast this attempted book banning is merely an effort to avoid the strict scrutiny applicable to this
case.
3.
The government’s entire argument focuses on the alleged primary effect of the
book – that people will believe it. Therefore s econdary effects analysis is
inappropriate.
The government argues that the injunction sought is not a content based prior restraint by
27
28
suggesting that an intermediate level of scrutiny is appropriate under Renton, su pra. Tha t case
18
1
2
involved the issue of zoning regulations for adult businesses un der the secondary effects doctrine.
Id. at 46.
3
4
5
6
7
8
“The regulation at issue in Renton described prohibited speech by reference to the
type of movie theatre involved, treating "theatres that specialize in adult films
differently from other kinds of theatres." Id., at 47. But while the regulation in Renton
applied only to a particular category of speech, its justification had nothing to do with
that speech. The content of the films being shown inside the theatres was irrelevant
and was not the target of the regulation. Instead, the ordinance was aimed at the
"secondary effects of such theatres in the surrounding comm unity," Ibid., effects that
are almost unique to theatres featuring sexually explicit films, i. e., prevention of
crime, maintenance of property values, and protection of residential neighborhoods.”
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10
11
12
13
Unlike the instant case, Renton did not involve the complete banning of a book or of any expression.
Id. Instead it was analyzed as a time, place and manner regulation. Id. See also, City of Los Angeles
v. Alameda Books, Inc., 535 U.S. 425, 433-434 (2002).
16
“The Renton ordinance, like the one in [Young v. ]American Mini Theatres, [427
U.S. 50 (1976)] does not ban adult theaters altogether, but merely provides that such
theaters may not be located within 1,000 feet of any residential zone, single- or
multiple-family dwelling, church, park, or school. The ordinan ce is therefore properly
analyzed as a form of time, place, and manner regulation.” Renton, supra, at 46.
17
The Court went on to say that under a Renton analysis, the question of content neutrality
18
does not even arise until it can be established that the governmental action at issue is a true time,
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15
19
place and manner restriction. Id.
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“Describing the ordinance as a time, place, and manner regulation is, of course, only
the first step in our inquiry. This Court has long held that regulations enacted for the
purpose of restraining speech on the basis of its content presumptively violate the
First Amendment.” Id at 46-47.
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24
In the instant case, the government attempts to justify its proposed injunction banning the
25
distribution of The FederalMafia do not involve any allegations of secondary effects associated with
26
the book. Instead, the attempt to ban the book is based on the alleged direct effect that Mr. Schiff’s
27
words purportedly have on readers. Thus, strict scrutiny is required. See, Reno v. ACLU, 521 U.S.
28
19
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2
844, 867-868 (1997). “Listeners' reactions to speech are not the type of ‘secondary effects’ we
referred to in Renton.” Boos v. Barry, supra, 485 U.S. at 321. Thus,the government’s arguments that
3
the proposed injunction be analyzed under intermediate level constitutional scrutiny as a time, place
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5
6
7
8
and manner restriction must necessarily fail because the injunction would totally ban a book based
solely on its content.
In Consolidated Edison Co. of New York v. Public Service Commission of New York, 447
U.S. 530, 536 (1980) the Court reiterated the fact that secondary effects analysis is only appropriate
9
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for time, place and manner restrictions. Here the government is seeking a total ban on The Federal
11
Mafia. Thus secondary effects analysis is inappropriate. Moreover, it is the primary effect of the
12
content of the book itself that the government objects to, not any ancillary effects. Unit ed States v.
13
Playboy Entert ainment Group, Inc. 529 U.S. 803, 815 (2000).
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17
“We have made it clear that lesser scrutiny afforded regulations targeting the
secondary effects of crime on property values has no application to content-based
regulations targeting primary effects of protected speech”
E.
Under the strict constitutional scrutiny that applies, the government is unlikely
to succeed on the merits .
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Because the attempt to ban The Federal Mafia does not fit into any of the limited exceptions
20
to content based speech restrictions, the proposed injunction must be analyzed under strict
21
constitutional scrutiny. “For the State to enforce a content-based exclusion it must show that its
22
regulation is necessary to serve a compelling state interest and that it is narrowly d rawn to achieve
23
that end.” Perry, supra; see also, Carey v. Brown, 447 U.S. 455, 461 (1980). The Government must,
24
25
however, choose the least restrictive means to further the articulated interest.” Sable, supra. Thus,
26
in order to withstand strict constitutional scrutiny the government must show that the proposed ban
27
on The Federal Mafia: 1) serves a compelling governmental interest, 2) is necessary to serve that
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20
1
2
interest, and 3) is the least restrictive means of serving that interest. None of these have been met
here.
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1.
4
5
The government has not articulated a compelling interest in banning The
Federal Mafia.
The first inquiry requires examination of the articulated interests the government has put
6
7
forth to justify its proposed act of censorship. The claim is that there is a comp elling interest in
8
preventing people from cheating on their taxes. While this may be substantial interest it is by no
9
means clear that it rises to the level of compelling. In Dahlstrom, supra, the Ninth Circuit suggested
10
11
that tax issues may not rise to the level of a compelling interest to meet strict scrutiny standards.
14
“Nothing in the record indicates that the advocacy practiced by these defendants
contemplated imminent lawless action. Not even national security can justify
criminalizing speech unless it fits within this narrow catego ry; certainly concern with
protecting the public fisc, however laudable, can justify no more.” Id. at 1428.
Here, however, at the April 11, 2003 hearing the government stated that its purpose in seeking
15
to ban The Federal Mafia is to avoid the time, trouble and expense of actually bringing criminal
16
prosecutions against those who break the law. It also seeks a stronger deterrent than criminal
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13
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convictions. Saving the government time, trouble and expense may be worthwhile goals, but they
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hardly meet the compelling standard of strict scrutiny needed to justify a prior restraint. This
20
argument, in fact, is the classic on e used to try to justify all prior restraints. It is as unconvincing now
21
as it was in Near v. Minnesota, supra. Censorship cannot be used as an expedient to avoid the
22
criminal justice system.
23
2.
The proposed injunction is not only unnecessary, it is also ineffective.
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In order to assess whether the proposed injunction meets th e strict scrutiny test, it is
26
necessary to evaluate exactly how the ban would operate and what its effect is likely to be. Clearly
27
the injunction would have no impact on those who are not parties to the case. Mr. Schiff and the
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21
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other Defendants would be prohibited from distributing The Federal Mafia. This, ho wever, would
not stop the book from being circulated by others.
3
In Progressive, I nc. v. Unit ed States, 467 F.Supp. 990, 995 (W.D. Wis. 1979), an injunction
4
5
was issued to prevent a magazine from distributing an issue containing instructions on ho w to
6
construct an atomic bomb. Because other publications not covered by the injunction were able to
7
publish and distribute the same material, the injunction proved ineffective and was subsequently
8
dropped. Even in the case of a national security concern, suppression of the disputed content was
9
10
impossible. Here, where Mr. Schiff’s theories have already been disseminated, an injunction is not
11
going to “put the genie back in the bottle.” While obtaining an injunction against the Defendants
12
banning their distribution of the book may provide the government with a symbolic victory, it will
13
not serve their stated aim of preventing dissemination of the material.
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3.
An injunction against The Federal Mafia fails the least res trictive means tes t.
15
16
The government does not argue that the proposed injunction against The Federal Mafia is
17
the least restrictive means for achieving its end. Clearly, such argument would be obviously false.
18
The Supreme Court has consistently stated that subsequent punishment for speech that violates the
19
law is the proper approach as opposed to a prior restraint. See, Near v. Minnesota, supra. As noted
20
in Barnett, supra, Rice, supra and Freeman, supra, that avenue is open and effective.
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Subsequent punishment for lawbreaking is preferable to prior restraint because it is less
23
restrictive of speech. Even in the area of obscenity, prior restraints are strongly disfavored. See,
24
Alexander, supra; see also, Van ce v. Universal Amusement Co., 445 U.S. 308, 315-16 (1980) Fort
25
Wayne Books v. In dia na, 489 U.S. 46, 63 (1989); United States v. Jenkins, 974 F.2d 32, 35 (5th Cir.
26
1992). Moreover, in evaluating obscenity the work in question must be viewed in its entirety. Miller
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v. Californi a, supra; Roth v. Uni ted St ates, 354 U.S. 476, 488-489 (1957):
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1
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“The early leading standard of obscenity allowed material to be judged merely by the
effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin,
[1868] L. R. 3 Q. B. 360. Some American courts adopted this standard but later
decisions have rejected it and substituted this test: whether to the average person,
applying contemporary community standards, the dominant theme of the material
taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by
the effect of isolated passages upon the most su sceptible p ersons, might well
encompass material legitimately treating with sex, and so it must be rejected as
unconstitutionally restrictive of the freedoms of speech and press.”
7
The requirement that material be viewed as a whole is important because the government has
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3
4
5
8
suggested the possibility of an injunction that would, in effect, edit out certain parts of The Federal
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10
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Mafia. Courts have found the idea of the government playing editor with expressive works to be
repugnant. See, Marylan d State Board of Moti on Picture Censors v. Times Fi lm Corp., 129 A.2d
12
833 (Md. 1957); see also, Near v. Minnesota, supra, 283 U.S. at 721-72 ; Freedman v. Maryland,
13
380 U.S. 51, 58 (1965). Even in a heavily regulated medium such as broadcasting the government
14
does not have the right or power to edit the material aired: Federal Communications Commission
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16
17
18
19
20
v. Pacifica Foundation, 438 U.S. 726, 735 (1978):
“The prohibition against censorship unequivocally denies the Commission any power
to edit proposed broadcasts in advance and to excise material con sid ered
inappropriate for the airwaves. The prohibition, however, has never been construed
to deny the Commission the power to review the content of completed broadcasts
in the performance of its regulatory duties.”
Clearly, it is not the role of the Court to act as censor in editing Mr. Schiff’s book in order to
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22
meet governmen tal approval. See, Nebraska Press Association, supra, 427 U.S. at 596 quoting
23
Craig v. Harney, 331 U.S.367, 374 (1947)[“There is no special perquisite of the judiciary which
24
enables it, as distinguished from other institutions of democratic government, to suppress, edit, or
25
censor events which transpire in proceedings before it.”] Rather than having any branch of the
26
government take on the role of censor, prior restraint, by imposing an outright ban or by the
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government editing material there is a clear preference in favor of subsequent punishment of
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1
2
proscribable speech. The government’s attempts at prior restraint here cannot meet the applicable
strict scrutiny standard. Thus, the government is not likely to succeed on the merits. For this reason
3
the injunction against The Federal Mafia shou ld not be issued.
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5
IV
The balance of hardships tips decidedly in Defendants’ favor.
6
Clearly the balance of hardships tips decidedly toward the Defendants as it relates to the
7
attempted ban on the distribution of The Federal Mafia. The loss of First Amendment freedoms, for
8
even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427
9
10
U.S. 347, 373 (1976); Empire News v. Solomon, 818 F.Supp.307, 309 (D. Nev. 1993).
11
In contrast, the government’s alleged harm is that it will have to actually criminally prosecute
12
lawbreakers instead of relying on censorsh ip. The number of successful prosecutions cited by the
13
government for tax evasion attest to the fact that such convictions are not impossible to obtain. Thus,
14
the only hardship the government will face if the injunction against The Federal Mafia is not issued
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is that they will have to do their job in prosecuting lawbreakers rather than having to depend upon
17
censorship. The fact that the government nowhere claims that banning the book will result in their
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not having to engage in criminal prosecutions is an admission that the hardship it will suffer is more
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symbolic than real. Ultimately, the failure of the government to obtain an injunction prohibiting the
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distribution of the book will do no more than demonstrate its an inability to engage in prior restraint,
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which is essentially no hardship at all.
V.
Conclus ion
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With neither a likelihood of success on the merits or a balance of hardships tip ping in their
25
favor, the government has not established that it has met the standards to obtain an injunction
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prohibiting the distribution of The Federal Mafia . The book does not fit into any of the exceptions
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to full First Amendment protection. It is not commercial speech, nor does it meet the Brandenburg
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standard for inciting imminent lawless activity. The book is a political diatribe that advocates a legal
analysis that the government and several courts have said is incorrect. The book itself acknowledges
3
this fact and warns of possible legal consequences for those who might adhere to these theories. The
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5
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recounting of Mr. Schiff’s own legal difficulties unquestionably puts the reader on notice of the
potential pitfalls.
Nor can the proposed prior restraint be justified on an aiding and abetting theory. Criminal
prosecution for aiding and abetting requires a factual analysis of the circumstances of the specific
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10
crime and the nexus of the alleged aider and abettor’s actions to those of the principals who actually
11
committed the criminal acts. Here, there are no facts, circumstances, principals, specific crime or
12
nexus to evaluate. This is a prior restraint proceeding based on the government’s theory that the book
13
could, in certain circumstances, aid and abet some future crime. This is insufficient basis for the type
14
of censorship p roposed.
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The government is requesting that this Court ban the distribution of The Federal Mafia the
17
based its content. It is requesting a ban rather than a time, place or manner restriction. Moreover, it
18
is the primary effect of the book’s content rather than any incidental secondary effect that forms the
19
basis of the government’s complaint. Thus, strict scrutiny applies. The government, however, has
20
failed to demonstrate that any of the requirement under strict scrutiny have been met. Thus, the
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injunction to ban distribution of The Federal Mafia could not be issued without violating both the
United States and the Nevada Constitutions.
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Any injunction in this case would necessarily have to be limited to either: 1) false commercial
25
speech, or 2) speech that is intended to and actually is likely to incite an imminent action. The
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Federal Mafia does not fit into either category and therefor should not be enjoined.2
Dated this 1st day of May 2003.
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Respectfully submitted by:
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__________________
Allen Lichtenstein
General Counsel,
ACLU of Nevada
NV Bar No.3992
3315 Russell Road, No. 222
Las Vegas, NV 89120
(702) 433-2666 phone
(702) 433-9591 fax
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Robert A. Nersesian
NV Bar No. 2762
Nersesian & Sankiewicz
528 S. 8th St.
Las Vegas, NV 89101
(702) 385-5454 phone
(702) 385-7667 fax
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Attorneys for the ACLUN, AAP, Inc,
ABFFE, FTRF, PEN American Center
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As stated previously, we take no position as to whether there is or is not any other
material at issue in this case that might meet the criteria to allow for an injunction.
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CERTIFICATE OF SERVICE
I hereby certify that on the 1 st day of May, 2003 I sent via U.S. Mail, first class, postage
3
prepaid, the foregoing brief, to:
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Evan J. Davis
Trial Attorney, Tax Division
U.S. Dept. of Justice
P.O. Box 7238
Wash ington, D.C. 20044
(202) 514-6770 fax
Freedom Books
444 E. Sahara Ave.
Las Vegas, NV 89104
__________________
Allen Lichtenstein
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